Citation Nr: 21024212 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-13 333 DATE: April 22, 2021 ORDER Severance of service connection for chronic kidney disease (CKD) with hypertension was improper; restoration of service connection for CKD with hypertension is granted. The severance of service connection for diabetic peripheral neuropathy of the left upper extremity was proper and the appeal is denied. The severance of service connection diabetic peripheral neuropathy of the right upper extremity was proper and the appeal is denied. FINDINGS OF FACT 1. The grant of service connection for CKD with hypertension, pursuant to a March 2016 rating decision, was not clearly and unmistakably erroneous. 2. The Veteran does not have diabetic peripheral neuropathy of the left or right upper extremity. 3. The grants of service connection for diabetic peripheral neuropathy of the left and right upper extremities, pursuant to a March 2016 rating decision, were clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of service connection for CKD with hypertension was improper; the criteria for restoration of service connection for CKD with hypertension have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 2. Service connection for diabetic peripheral neuropathy of the left upper extremity was properly severed, and the criteria for restoration of service connection for diabetic peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.310. 3. Service connection for diabetic peripheral neuropathy of the right upper extremity was properly severed, and the criteria for restoration of service connection for diabetic peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 1155, 5109A (2012); 38 C.F.R. §§ 3.103, 3.105, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to July 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in January 2021. A transcript of the hearing is included in the electronic claims file. The appeal originally included the issues of whether the severance of service connection for erectile dysfunction was proper and whether the decision to discontinue entitlement to special monthly compensation (SMC) based on loss of use of a creative organ was proper. In February 2020, the RO restored service connection for erectile dysfunction and continued entitlement to SMC based on loss of use of a creative organ. These claims have been resolved and are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Severance of Service Connection Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE); the burden of proof being on the Government. 38 C.F.R. § 3.105(d). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105 (a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking an unfavorable previous determination overturned. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. VA’s burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. A decision that is reversed or amended based on CUE is revised to conform to the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62. The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The RO originally granted service connection for CKD with hypertension and diabetic peripheral neuropathy of the left and right upper extremities in a March 2016 rating decision. In a July 2016 rating decision, the RO proposed to sever service connection for CKD with hypertension and diabetic peripheral neuropathy of the left and right upper extremities. The RO noted that the service connection had been awarded based on findings of a February 2016 VA examination completed by a nurse practitioner. However, the RO explained that VA medical doctors reviewed the claims in April and July 2016 and determined that the Veteran’s CKD with hypertension could not have been caused by the service-connected diabetes mellitus because the CKD was diagnosed prior to the onset of the diabetes mellitus and had not been shown to have been aggravated by the diabetes mellitus. In addition, the RO explained that the VA doctors had determined that the Veteran had carpal tunnel syndrome (CTS) of the bilateral upper extremities and not neuropathy caused by diabetes. The RO concluded that the decision to grant service connection for CKD with hypertension and diabetic peripheral neuropathy of the left and right upper extremities was clearly and unmistakably erroneous. In the April 2017 rating decision, the RO severed service connection for CKD with hypertension and diabetic peripheral neuropathy of the left and right upper extremities. The RO reiterated the findings of the July 2016 rating decision and concluded that severance was proper. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in July 2016, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The August 2016 notice letter also informed the Veteran that he had the opportunity for a hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran requested and testified in a pre-decisional hearing in December 2016. In the April 2017 rating decision, the RO determined that severance of service connection was proper. The RO issued the April 2017 rating decision, which severed service connection prospectively effective July 1, 2017. Notice of this rating decision, including his appellate rights, was sent to the Veteran in April 2017. The July 1, 2017, date was greater than the last day of the month in which a 60-day period from the date of the April 2017 notice expired. Thus, all due process requirements were met in the severance of service connection for CKD with hypertension and diabetic peripheral neuropathy of the left and right upper extremities. See 38 C.F.R. § 3.105(d). 1. Whether the severance of service connection for CKD with hypertension was proper Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for CKD with hypertension was clearly and unmistakably erroneous. The severance of service connection was improper because the evidence is not clear and unmistakable, as the term is understood in law, as to whether the Veteran’s CKD is not secondary to the service-connected diabetes mellitus. Weighing in favor of the claim, a January 2016 VA diabetes mellitus examination reflects that diabetes was diagnosed in 2010. The January 2016 VA kidney conditions examination documents diagnoses of chronic renal disease and renal involvement in diabetes mellitus. The examiner indicated that the kidney disorder was diagnosed in 2014. Also tending to favor the Veteran’s claim, an October 2018 statement from his treating physician reflects that the Veteran’s diabetes more likely than not caused or contributed to his development of, in pertinent part, kidney disease. In addition, the March 2020 Report of VA kidney conditions examination documents diagnosis of diabetic nephropathy. An October 2020 VA kidney conditions examination documents diagnosis of “service-connected chronic kidney disease with hypertension.” The physician explained there was no change in the service-connected diagnosis and no additional diagnoses have been rendered. Weighing against the claim, the April 2016 VA medical opinion that the Veteran did not meet the diagnostic criteria for diabetes mellitus until 2014. The physician explained that the Veteran had elevated creatinine in 2008, indicating that he had kidney disease as early as 2008. The physician concluded, in pertinent part, that the available medical records indicated that the Veteran had CKD well before he was diagnosed with diabetes mellitus. The physician explained that the major clinical finding of diabetic nephropathy was albuminuria but there was no evidence the Veteran had albuminuria. Also weighing against the claim, a July 2016 VA medical opinion that the Veteran’s renal insufficiency or CKD predates his diagnosis of diabetes. The physician concluded that the kidney disease was not due to or the result of the Veteran’s diabetes and explained that there was no evidence to support that the Veteran’s diabetes aggravated his kidney disease. In a February 2020 VA medical opinion the provider concluded that the Veteran’s CKD was less likely than not proximately due to or the result of his service-connected diabetes. The physician explained that the records showed that the Veteran was diagnosed with renal insufficiency in 1998 and hypertension in 2003, years prior to the diagnosis of diabetes mellitus. The physician concluded there was no evidence that renal insufficiency or hypertension was caused by or permanently aggravated beyond its natural progression by diabetes mellitus. Here, there is evidence in favor of the claim and evidence against the claim. However, this is not a claim of service connection to be evaluated as to whether the claim should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the preponderance of the evidence would be against the claim. In this matter, the standard to be employed for severance is whether there is “clear and unmistakable evidence” of an error. Reasonable minds could disagree as to the ultimate determination. However, the determination here amounts to no more than a disagreement as to how to weigh the facts. In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. The severance of service connection for CKD with hypertension was improper and restoration is warranted. 2. Whether the severance of service connection for diabetic peripheral neuropathy of the left upper extremity was proper 3. Whether the severance of service connection for diabetic peripheral neuropathy of the right upper extremity was proper Having met the due process requirements, the remaining question before the Board in this case is whether the grants of service connection for diabetic peripheral neuropathy of the left and right upper extremities were clearly and unmistakably erroneous. The Board concludes that the severance of service connection was proper because the record provides clear and unmistakable evidence that the Veteran does not have diabetic peripheral neuropathy of the left and right upper extremities. At the time of the March 2016 rating decision, the January 2016 VA diabetic sensory-motor peripheral neuropathy examination documents diagnoses of diabetic peripheral neuropathy of the left and right upper extremities involving the radial (musculospiral) and median nerves. The examination report reflects that the Veteran did not have a lower extremity diabetic peripheral neuropathy. The July 2016 VA opinion documents the physician’s report that May 2016 EMG study findings showed no evidence of diabetic neuropathy. Rather, the Veteran’s complaints of numbness and tingling of his upper extremities were associated with bilateral carpal tunnel syndrome (CTS). The physician concluded that based on the objective testing with EMG, the Veteran did not have diabetic peripheral neuropathy. Rather, the Veteran has bilateral CTS, but the physician explained that the bilateral CTS was not due to his diabetes because there was no evidence of hyperglycemia. As noted, a change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). The October 2018 statement from the Veteran’s treating physician reports, in pertinent part, that the Veteran’s diabetes caused or contributed to development of his neuropathy and a January 2019 diabetic sensory-motor peripheral neuropathy disability benefits questionnaire (DBQ) documents diagnosis of diabetes mellitus neuropathy. However, the February 2020 VA opinion explains that there is no evidence of diabetic peripheral neuropathy. The physician determined that the Veteran has been diagnosed with CTS and explained the Veteran had no clinical signs of diabetic peripheral neuropathy. The physician reported that CTS cannot be caused by or aggravated by diabetes mellitus as CTS develops over many years by a gradual reduction in the space within the carpal tunnel for the median nerve. In an additional February 2020 VA medical opinion, the physician further explains that there was no evidence of diabetic peripheral neuropathy because the Veteran had normal diabetic foot exams. The physician explained that diabetic peripheral neuropathy develops in the classic stocking glove pattern affecting the long nerves of the feet first and does not affect the upper extremities for many years of sustained hyperglycemia. The physician concluded that the Veteran had no evidence of lower extremity diabetic peripheral neuropathy and thus could not have upper extremity diabetic peripheral neuropathy caused or aggravated by diabetes mellitus. The March 2020 VA peripheral nerves conditions examination confirms the diagnosis of bilateral CTS involving the median nerves of the right and left upper extremities. A September 2020 statement from a private physician reports that the findings of EMG and nerve conduction velocities tests showed neuropathy consistent with moderately severe motor sensory polyneuropathy. The physician concluded that the polyneuropathy must be at least as likely as not caused or aggravated by the service-connected diabetes mellitus. The October 2020 VA diabetic sensory-motor peripheral neuropathy examination documents diagnosis of diabetic peripheral neuropathy of the bilateral lower extremities. The physician explicitly indicated that the Veteran did not have upper extremity diabetic peripheral neuropathy. The October 2020 VA peripheral nerves conditions examination confirms the diagnosis of bilateral CTS involving the median nerves of the left and right upper extremities. The physician explained that this new diagnosis was a correction of the previous diagnosis and concluded that the nerve findings of the upper extremities were due solely to the CTS. Thus, the competent evidence of record confirms that the Veteran does not have diabetic peripheral neuropathy of the left and right upper extremities. Without valid diagnoses, service connection is not warranted. The evidence documented above does not otherwise suggest the bilateral CTS was caused or aggravated by the service-connected diabetes mellitus. In fact, the February 2020 VA medical opinion documents the physician’s explanation that CTS cannot be caused by or aggravated by diabetes mellitus because CTS develops over many years by a gradual reduction in the space within the carpal tunnel for the median nerve. For these reasons, the grants of service connection for diabetic peripheral neuropathy of the left and right upper extremities, pursuant to a March 2016 rating decision, was clearly and unmistakably erroneous. The severance of service connection was therefore proper, and the appeals are denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.